"It is a cop out for doctors to blame all of their practice ills on attorneys."

Precisely. That's why we blame some, and the responsibility is on the individual to study study study, the supervisors to ensure quality care, and all to support a culture of safety and improvement.

Do you know what happens to a culture of safety when lawsuits are rampant? Reporting an error is fundamental to recognizing why they occur and preventing the next one. The punitive legal landscape is at direct opposition to disclosure at work and with patients (I *still* support it).

"Not every unnecessary test can be blamed on lawyers."

Nope, just some. Why would we EVER find that ANYTHING is ALWAYS the fault of ANYTHING? It's always complex. In Rich's case, the problem was an issue of "can do = should do" and a lazy mentality that doesn't routinely ask WHY every test and action is needed, and I'm sure defensive medicine contributed. Extra tests is a good example of how the "standard practice" standard is crummy. I've been working to reeducate the inpatient residents who routinely order full panels of tests daily because they're worried about missing something. This amounts to over a hundred dollars of wasted money per patient per day! I have them THINK about their ordering and recheck a potassium if that's what they need, not a metabolic panel, and not reorder "morning labs" if we need none. This will save us all money, and reduce pain and anemia for the patients, phelbotomy time, lab costs, and extra procdures for when they run out of veins. But I can recall maybe 2 patients the last year who did develop surprising problems (eg early kidney failure) that had delayed detection because I'd backed off on their "daily labs"--and you know what? Because the "standard" is idiotic daily ordering of unneeded labs, they might be able to win if they sued (we had good relationships so they wouldn't) and the costs from that one lawsuit would negate ALL the benefits of a year's work. THANKS, punitive / antagonistic legal culture

Rich mentioned the PSA--it's inaccurate and leads to a lot of extra testing over nothing and ALSO its unclear whether finding that prostate cancer actually helps men or merely subjects them to painful, expensive, incontinence and libido killing treatments. (There was a big study in NEJM which showed that PSA detected prostate cancer patients had a survival advantage over those watchfully observed, suggesting a benefit to screening, however). But when national guidelines and the inconclusive evidence were observed by a resident AND discussed with a patient, that man STILL sued and won because his skipped PSA meant a delayed cancer diagnosis (see "a ppiece of my mind" section from JAMA). It was like an obstetricts case: sad patient with permanent or sad illness and test which is supposed to have helped they didn't do? Cha-ching! Forget about whether there's any proof the PSA helps and forget about the fact there's proof the fetal monitoring DOESN'T help.

Is there going to be a class action lawsuit for the victims of unnecessary testing who suffer painful prostate biopsies or get an infection from the line that was put in after IV sites were exhausted doing pointless labs? Probably not--here's the funny question though: would it target the lawyers who induced the doctors to make those mistakes to protect themselves from other lawsuits? Or would it target the lawyers who induced those problems in the first place?

"And if a doctor is more careful in treating a patient because she’s afraid of a lawsuit, is that a bad thing?"

No. It's only bad when that doctor orders a test that's not needed or gives a medicine against his or her judgment because of subtle or specific lawsuit threats and then costs, side effects, and a perpetuation of the situation harm us all.

A series of abstracts selected from pubmed returns for "malpractice," limited to "clinical trials".

Something for Rich (FYI buddy, I'd be happy to try to tell you if and when something is needed in the future. Some of it is overcharge (eg come in for oil change every 3k when the driver's manual says 5k) and some is intellectual laziness / practice inertia; some is also defensive.

PURPOSE: To assess the relationship between radiologists' perception of and experience with medical malpractice and their patient-recall rates in actual community-based clinical settings. MATERIALS AND METHODS: All study activities were approved by the institutional review boards of the involved institutions, and patient and radiologist informed consent was obtained where necessary. This study was performed in three regions of the United States (Washington, Colorado, and New Hampshire). Radiologists who routinely interpret mammograms completed a mailed survey that included questions on demographic data, practice environment, and medical malpractice. Survey responses were linked to interpretive performance for all screening mammography examinations performed between January 1, 1996, and December 31, 2001. The odds of recall were modeled by using logistic regression analysis based on generalized estimating equations that adjust for study region. RESULTS: Of 181 eligible radiologists, 139 (76.8%) returned the survey with full consent. The analysis included 124 radiologists who had interpreted a total of 557 143 screening mammograms. Approximately half (64 of 122 [52.4%]) of the radiologists reported a prior malpractice claim, with 18 (14.8%) reporting mammography-related claims. The majority (n = 51 [81.0%]) of the 63 radiologists who responded to a question regarding the degree of stress caused by a medical malpractice claim described the experience as very or extremely stressful. More than three of every four radiologists (ie, 94 [76.4%] of 123) expressed concern about the impact medical malpractice has on mammography practice, with over half (72 [58.5%] of 123) indicating that their concern moderately to greatly increased the number of their recommendations for breast biopsies. Radiologists' estimates of their future malpractice risk were substantially higher than the actual historical risk. Almost one of every three radiologists (43 of 122 [35.3%]) had considered withdrawing from mammogram interpretation because of malpractice concerns. No significant association was found between recall rates and radiologists' experiences or perceptions of medical malpractice. CONCLUSION: U.S. radiologists are extremely concerned about medical malpractice and report that this concern affects their recall rates and biopsy recommendations. However, medical malpractice experience and concerns were not associated with recall or false-positive rates. Heightened concern of almost all radiologists may be a key reason that recall rates are higher in the United States than in other countries, but this hypothesis requires further study. Copyright RSNA, 2005

Here's something that's no surprise and suggests the best way to avoid lawsuits:

PURPOSE: We explore how nursing home characteristics affect the number of lawsuits filed against the facilities in Florida during the period from 1997 to 2001. DESIGN AND METHODS: We examined data from 478 nursing homes in 30 Florida counties from 1997 to 2001. We obtained the data from Westlaw's Adverse Filings: Lawsuits database, the Online Survey, Certification, and Reporting system database from the Centers for Medicare and Medicaid Services, and state complaint surveys, and we also used primary data. We used negative binomial regression to explain total lawsuit variance by year. We controlled for acuity and year effects, and our explanatory variables included (a) facility characteristics--including staffing, number of beds, multistate system membership, and for-profit ownership--and (b) quality measures--including total number and type of state licensing survey deficiencies, pressure-sore development, and medication errors per resident. RESULTS: Higher registered nurse and certified nursing assistant staffing levels were associated with fewer lawsuits. More deficiencies on the licensing survey and larger and for-profit nursing homes were positively related with higher numbers of lawsuits. IMPLICATIONS: This study suggests that nursing homes that meet long-stay staffing standards, meet minimum quality measures, are not for profit, and are smaller will experience fewer lawsuits. Copyright 2004 The Gerontological Society of America

This tells us much the same, although its interesting to note that "noncompliance explains A THIRD of cases." The rest?

OBJECTIVE: To estimate whether guideline compliance affected medicolegal risk in obstetrics and whether malpractice claims data can provide useful information on guideline noncompliance by focusing on the claims experience of a large health system delivering approximately 12000 infants annually. METHODS: We retrospectively identified 290 delivery-related (diagnosis-related groups 370-374) malpractice claims and 262 control deliveries at the health system during the period from 1988 to 1998. Clinical pathways for vaginal and cesarean delivery implemented in 1998 were used as a "standard of care." We compared rates of noncompliance with the pathways in the claims and control groups, calculated an odds ratio for increased risk of being sued given departure from the guideline standards, and calculated the elevated risk of litigation introduced by noncompliance. We also compared the frequencies of different types of departures across claims and control groups. RESULTS: Claims closely resembled controls on several descriptive measures (mother's age, location of delivery, type of delivery, and complication rates), but noncompliance with the clinical pathway was significantly more common among claims than controls (43.2% versus 11.7%, P <.001; odds ratio = 5.76, 95% confidence interval 3.59, 9.2). In 81 (79.4%) of the claims involving noncompliance with the pathway, the main allegation in the claim related directly to the departure from the pathway. The excess malpractice risk attributable to noncompliance explained approximately one third (104 of 290) of the claims filed (attributable risk = 82.6%). There were no significant differences in the types of deviation from the guidelines across claims and control groups. CONCLUSION: In addition to reducing clinical variation and improving clinical quality of care, adherence to clinical pathways might protect clinicians and institutions against malpractice litigation. Malpractice data might also be a useful resource in understanding breakdowns in processes of care.

Here's some empiric evidence of what I said about MD-patient relationships:

OBJECTIVE: To examine the causal effects of doctor-patient relations and the severity of a medical outcome on medical patient perceptions and malpractice intentions in the event of an adverse medical outcome. DESIGN: Randomized between-subjects experimental design. Patients were given scenarios depicting interactions between an obstetric patient and her physician throughout the patient's pregnancy, labor, and delivery. PARTICIPANTS: One hundred twenty-eight postpartum obstetric patients were approached for participation, of whom 104 completed the study. Main outcome measures Patients' perceptions of physician competence and intentions to file a malpractice claim. RESULTS: Positive physician communication behaviors increased patients' perceptions of physician competence and decreased malpractice claim intentions toward both the physician and the hospital. A more severe outcome increased only patients' intentions to sue the hospital. CONCLUSION: These results provide empiric evidence for a direct, causal effect of the doctor-patient relationship on medical patients' treatment perceptions and malpractice claim intentions in the event of an adverse medical outcome.

Disclosing Harmful Medical Errors to Patients
A Time for Professional Action
Arch Intern Med. 2005;165:1819-1824.

INTRODUCTION
Physicians find themselves in an increasingly untenable bind when deciding whether and how to disclose harmful medical errors to patients. Error disclosure is desired by patients and advocated by safety experts and ethicists and is now included in many hospital policies, state laws, and accreditation standards.1-13 Yet, as the malpractice crisis deepens, calls to fully disclose errors to patients can strike physicians as naive, simplistic, and unacceptably risky.14-16 As a result, many patients receive little information about errors in their care. Recently, only 30% of physicians who experienced an error in their own health care said that they were told about the error, a disclosure rate consistent with prior studies.17-23

Improving the disclosure process could enhance patients’ satisfaction and their trust in physicians’ integrity.24-26 Furthermore, as error disclosure becomes better integrated with patient safety activities, such disclosure could promote higher quality of care. Yet, physicians may feel that the medical malpractice climate poses an insurmountable barrier to disclosing errors more fully to patients. We propose important, feasible steps that physicians, health care institutions, medical societies, specialty organizations, and certifying bodies can take, even in the current litigious environment, to improve the disclosure of harmful errors to patients.

Winston Churchill made a comment about democracy that fits our legal system: It is the worst system there is, except for all the others that have been tried.

I respectfully disagree, Norm.

Norm wrote:

To label all trial attorneys as “scum” is unfair, ignorant and uninformed.

For sure. And when someone does it, you should call them on it.

Norm wrote:

I don’t expect to change somebody’s mind about trial lawyers, and that was not the purpose of my original post. I do expect simple common courtesy, and that includes not being referred to as scum because I belong to a particular profession.

So I presume by a fair application of your logic that I think my only brother and one of my sisters (the one I am closest to, BTW) are scum.

Just how, Norm, did you come upon this conclusion? And of course we both know that you are referring to me.

But let's just step back a bit on that last comment.

Norm wrote:

I do expect simple common courtesy, and that includes not being referred to as scum because I belong to a particular profession.

I spent 11.5 years of my professional career working for a well-known health insurance company. And irony of ironies, someone I know and love has repeatedly sued this organization. Go figure...

When I first came out of academia, I was appalled at the reaction I got when I told someone I worked for XYZ health insurance company. The expression my chief medical officer at the time used to use to describe the response was "verbal diarrhea."

But you know what? I learned to listen. I had some long talks with my brother about this. More often than not, the other party was not very articulate in expessing their unhappiness. But what they said wasn't as important as the fact that they were unhappy.

If you spend all your time trying to convince an unhappy world why they are wrong to be unhappy...

I agree with you 100%. How can anyone label an entire industry? I don't mince words too much, but I can't think that Bill meant an insult my his remarks, only I discovered through his writings that he doesn't understand how his posts are sometimes implied. Yes, Bill, I know you are there and don't need me to meddle, but it's true. I've been reading this post when I have nothing to do, and your implications are derogertory. Does that mean you have insulted your brother and whoever else? Unfortunately, it does.

I've said it before to both you and Rich, that your continued use of definitives in your threads, shows that you don't have a real hold on what people think and feel. Bring on all the research you like from your "objective" sources, but it doesn't mean squat if you run over the people you are trying to inform. As a teacher, I tell my students to have their papers read to them by someone else before submitting them. That way, they are able to hear what they are trying to say, and perhaps get a different perspective. Most of the time, they end up making modifications in their writing. Give it a try.

Something for Rich (FYI buddy, I'd be happy to try to tell you if and when something is needed in the future

.

I will take you up on that Ian. Thanks.

Quote:

and Rich, that your continued use of definitives in your threads, shows that you don't have a real hold on what people think and feel.

Mike: I am just reporting my experiences. What do you perceive to be a problem?

More of my personal anecdote of diagnostics run amok...

Keep in mind, this all started with discomfort in my sinuses and flu symptoms. First an xray and a ton of blood work, then a CAT scan, and more bloodwork, then the full body MRI scan and more blood tests and other assorted body fluid tests. Then the call from the radiologist that I 'need to completely alter my lifestyle or be crippled', and then more referals.

And I am not making this up... the radiologist who reviewed my MRIs sent me to an orthopeadic back surgeon. He must have told the surgeon I was a mess. The surgeon arrived in the exam room with a physical therapist to help me 'move'. When they asked how bad my immobility was I laughed and dropped into a split. The surgeon said he wished he could do that and told me there did not seem to be any problem. He then left after asking me how to loosen up his hamstrings. I was in an incredible circle jerk of specialists who spent almost no time with me but placed their faith in the diagnostic images. But it was not over yet.

They also lost my MRI scans and I finally got a set without having to pay another $400. When I got home I looked at them and was aghast at what the brain and c-spine view looked like... all twisted and bent. Then I read the fine print in the bottom corner. They were not mine. They belonged to some poor guy that must have been in a head-on collision.

When I called they were very apologetic and asked me to return mr. X's MRI scans. Then we even had conern that no one actually looked at the correct ones for me. They said I could start all over but I had had enough. Four hours in an MRI scanner and dye in my veins was too much to repeat.

I finally got good advice for my mysterious malady that ran up a $30,000+ bill, via a phone message, from a neurologist who I was ultimately referred to (and who performed a very long and extremely painful test on me). He said to just drink a beer. No kidding. He was the only MD that took a chance on saying that since no one could find anything I was probably OK. He did say though that if I was really concerned he would order a spinal tap for me. Ugh!

I went and drank a beer. In fact there is a beer waiting for me now so off I go.

Rich I think there are two fears at work in your MD's concerns. Part is error and imperfection, perhaps... we all have that, but aside from fear #1, lawsuit, is fear #2, missing someone bad on someone who's not just anyone, but someone who's productive active and young. I don't mean to say we aren't bothered by missing something in someone who's very old, very sick, and has little time and is bedbound, but it's devastating to hear of a life changing illness and to have a role is awful.

Case in point: saddest thing I ever saw was the horrible death of a 31 year old guy who was well days before, from fulminant chickenpox, while his wife was 7 mo pregnant with son #2. The team on the regular floor didn't start his therapy right away because they didn't recognize it as chickenpox (several doctors--ER, medical) and even the wife had asked them, could it be... and then he was sent to the icu where i met him, and died. I spoke with the widow not long ago, a year after he died, and she was sooooo nice, had only kind words for his caretakers, and could barely even make herself ask if it might have saved him to start sooner. She was afraid to give the impression that she'd even think to sue! Could she? Probably. And find an expert who could say it might have / did worsen things? Probably. And he was in his prime! But it's simply not in her heart. To her its wrong. We may hear what she could have got and/or deserved... I told her she could ask to have it looked into to make sure it didn't happen again, and that much more suited her outlook. Angel.

Trying to be as objective as possible, I completely agree with you. . . In reading Bill's posts, he comes across (In my opinion) as insulting all attorneys.

Now... my solution...

I wish there was a way to identify and label all bad (a term that collectively represents all the terrible qualities imaginable) individuals, by profession, and allow them to only practice their profession on others who are "bad"!

All us "good" guys/gals would therefore never have to be seen by a "bad" doctor, be sued by a "bad" lawyer or take karate lessons from a "bad" sensei!

There are mixed agendas here. One would have had to read many threads over many years to appreciate what I am saying. I will say no more, as to do so would just contribute to the problem(s).

I stand firmly by my views on the broken tort system. I cannot have a passion for doing what I do professionally and charitably without having had the experiences that I have. Don't expect me to change. On the contrary, it is a life mission (professionally and personally) to do something about it. Thankfully I am in such a position. And if I am successful, good things will come of it well before anyone ever notices.

It is never my intention to speak badly of good people, and inappropriately to paint a broad brush. And I would be the first to admit my shortcomings.

And I am very proud to live in a Commonwealth and in a greater metropolitan area that has such great and reknown universities and scientific/medical facilities. Everyone ought to be so lucky. If we can only get the cost of housing to go down. Oh well. Such is the cost of living in paradise!

Just an FYI...

Virginia, where Rich and Bill live, is also a "Commonwealth" (as opposed to a "State"). There aren't too many. IIRC, only 3. However, in the Commonwealth of Virginia, as opposed to Massachusetts, income and property taxes are lower, health/home/auto insurance rates are lower, there is much more open space and farmland, rent and property prices are lower, and they also have world renowned universities/scientific/medical institutions and facilities! It's true that the average income level there is lower than MA, but the cost of living more than offsets the difference in most areas. In some areas (Richmond, near DC, near the coast) the average income level rivals Massachusetts. OTOH, rent control in parts of Boston and Cambridge have caused all manner of corrupt practices and problems. Given a choice between South Boston (MA) or South Boston (VA), I'd prefer the one with the more moderate climate and a nice dose of southern hospitality.

In my world, I stay pretty focused on the delivery of health care. People try to politicize it; I try not to.

It's really pretty basic. You have limited GNP. You have an aging population with known and unknown morbidity. You have a fragmented health care delivery system that's excellent in some ways, and "needs work" in others. You have a demand for care that isn't necessarily associated with a need for care. You have life & death issues and decisions. You have expectations, and (dis)satisfaction, and wins, and losses. And at the end of the day, death and taxes prevail.

And in my world, you see billions of dollars flowing through the system. And so do a lot of other people. And the amount of money spent or "taken" out of the system by various parties isn't necessarily associated with the quality and outcome of care. As a matter of fact, folks like Wennberg have shown that in many parts of the system, we're at the point of the curve where there's an inverse correlation.

I haven't even mentioned the "L" word, have I? But it's in there if you look a bit closer.

To a hammer, everything looks like a nail. That doesn't mean a hammer is going to solve your problem. It's just a tool - one of many - and it's inappropriate to use it in most situations.

But to a hammer, everything looks like a nail.

To a surgeon, everyone looks like a "candidate." That's why we often keep patients away from them. (You know what I'm talking about here, Ian. )

Quote:

I am very proud to live in a Commonwealth and in a greater metropolitan area that has such great and reknown universities and scientific/medical facilities.

I found this a particularly interesting comment. It was meant to make the reader believe that said individual existed in a better land.

Meanwhile, John Wennberg made his name in medicine with his classic "Boston vs. New Haven" studies. There were x% more tonsillectomies in Boston than in New Haven, and yet there was no evidence of better outcomes. Worse yet, in some cases there was evidence that less was more with some procedures.

Wennberg practically invented the phrase "supply-induced demand."

More is better, right?

And when people disagree, when they aren't happy, should we let them fight it out? And is it all good to just let people fight it out in the court of public opinion? Or should we seek truth before we seek what we think we want?

And what happens when we just leave the status quo as is?

Quote:

Forty-two percent of respondents (physicians) reported that they had taken steps to restrict their practice in the previous 3 years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious.

So... Just what are we trying to accomplish here? And are the approaches we are taking to the problem leading to postitive change? And if not...

ABSTRACTBackground Geographic variations in the use of hospital services are associated with differences in the availability of hospital beds. There continues to be uncertainty about the extent to which unmeasured case-mix differences explain these findings. Previous research showed that the number of occupied beds per capita in Boston was substantially higher than the number of occupied beds per capita in New Haven, Connecticut, and that overall rates of hospital utilization were higher for Boston residents than for New Haven residents.

MethodsWe used Medicare claims data to study cohorts of Medicare beneficiaries 65 years of age or older and residing in Boston or New Haven who were initially hospitalized for one of five indications (acute myocardial infarction, stroke, gastrointestinal bleeding, hip fracture, or potentially curative surgery for breast, colon, or lung cancer). Residents of Boston or New Haven who were discharged between October 1, 1987, and September 30, 1989, were enrolled in the cohort corresponding to the earliest such admission and followed for up to 35 months.

ResultsThe relative rate of readmission in Boston as compared with New Haven was 1.64 (95 percent confidence interval, 1.53 to 1.76) for all cohorts combined, with a similarly elevated rate for each of the five clinical cohorts and each age, sex, and race subgroup examined. Hospital-specific readmission rates varied substantially among the hospitals in Boston and were higher than those in New Haven. No relation was found between mortality (during the first 30 days after discharge or over the entire study period) and either community or hospital-specific readmission rates.

ConclusionsRegardless of the initial cause of admission, Medicare beneficiaries who were initially hospitalized in Boston had consistently higher rates of readmission than did Medicare beneficiaries hospitalized in New Haven. Differences in the severity of illness are unlikely to explain these findings. One possible explanation is a threshold effect of hospital-bed availability on decisions to admit patients.

It was you who suggested I talk a walk over to Harvahd Med anytime I wish to improve myself. And it's you who say we all should kowtow to the President with a Harvahd MBA. But now Harvahd, MIT, et al aren't good enough. Puleeze.

Thanks for the geography lesson Panther. I am well aware of Virginia status as a Commonwealth. Used to live there as well, you know (when I was a kid). One of the the beauties of these here United States is that we have 50 states, a District of Columbia and a whole host of possessions and territories to which we can hang our hats. Hell, one can even be an ex-patriot and still have a say in the affairs of State.

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